VES-13-18 CO:R:P:C 111249 JBW
Deputy Assistant Regional Commissioner
Commercial Operations
c/o Regional Commissioner
New Orleans, LA 70130-2341
RE: Vessel Repair; LASH Barges; Casualty; 19 U.S.C. 1466; 19
C.F.R. 4.14(d)(1)(G)(iii); Protest No. 5301-81-000113.
Dear Madam:
This letter is in response to your memorandum of August 9,
1990, which forwards for our review and ruling the above-
referenced protest from the assessment of vessel repair duties.
FACTS:
The above protest covers foreign repairs to a United States
flag Lighter Aboard Ship (LASH) barge owned by Central Gulf
Lines, Inc., of New Orleans, Louisiana. The record reflects that
shipyard work was performed to LASH barge CG 821 in Alexandria,
Egypt. The entry was liquidated on December 26, 1980. The
petitioner submits as evidence of casualty a signed, undated
statement that the barge was surveyed on March 9, 1979, and that
it was seaworthy at the time of loading. The petitioner also
submits shipyard invoices for the foreign repairs.
ISSUE:
Whether evidence is presented sufficient to prove that the
repairs performed on the barge for which relief is sought were
necessitated by a casualty occurrence, thus warranting
remission.
LAW AND ANALYSIS:
Title 19, United States Code, section 1466, provides in
pertinent part for payment of duty in the amount of 50 percent ad
valorem on the cost of foreign repairs to vessels documented
under the laws of the United States to engage in foreign or
coastwise trade, or vessels intended to engage in such trade.
The statute provides for the remission of the above duties in
those instances where good and sufficient evidence is furnished
to show that foreign repairs were compelled by "stress of weather
or other casualty" and were necessary to secure the safety and
seaworthiness of the vessel to enable her to reach her port of
destination. 19 U.S.C. 1466(d)(1).
The term casualty, as it is used in the statute, has been
interpreted as something that, like stress of weather, comes
with unexpected force or violence, such as fire, explosion, or
collision. Dollar Steamship Lines, Inc. v. United States, 5
Cust. Ct. 23, 28-29, C.D. 362 (1940). In the absence of evidence
of such a casualty causing event, we must consider the repair to
have been necessitated by normal wear and tear. C.S.D. 89-95, 23
Cust. B. & Dec., No. 43, 4, 5 (1989).
Owing to the factors peculiar to the operation of LASH
barges, the Customs Regulations allow for special standards of
evidence when casualty claims are made concerning such vessels
under 1466(d)(1). These regulations provide that there must be
submitted evidence showing that a barge was inspected immediately
prior to being loaded upon its vessel of departure from the
United States, that it was found to be seaworthy at that time,
that damage was discovered during the course of the foreign
voyage, and that the repairs performed were necessary for the
safety and seaworthiness of the barge to enable it to reach its
United States port of destination. 19 C.F.R.
4.14(d)(1)(iii)(G)(1990). Documents purporting to demonstrate
these elements must have been prepared at the time that barges
were placed aboard for foreign departure and must have been
prepared and signed by responsible persons in a position to
attest to the veracity of the statements being made. Documents
executed after the fact or by persons with no first-hand
knowledge of the actual condition of barges immediately prior to
foreign departure are of no probative value and are insufficient
for purpose for which they are submitted. C.S.D. 89-95.
The Customs Service has consistently held that undated
statements relating to the condition of a barge are unacceptable.
There is no way for Customs to determine whether these statements
were executed contemporaneously with the lading of the vessels,
thus providing credible evidence, or whether they were prepared
at some later date. Id. The facts presented in this case
indicate that the barge was inspected on March 9, 1979. The
statement relating to the condition of the barge only indicates
the date of inspection, not the date that the statement was
actually signed. The petitioner thus submits no evidence that
the inspection statement was made at the time of loading. For
this reason, we conclude that the petitioner does not meet the
evidentiary requirement as established in the regulations for
LASH barge casualty claims. The protest consequently is denied.
HOLDING:
In light of the foregoing, we recommend that the protest be
denied.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch